5. If the landowner enters into a Musāqāh or Muzāra‘ah agreement for a period sufficient for the fruit to mature, but the trees fail to bear fruit that year, th

_____ الباب الثالث عشر: الشفعة والجوار The Thirteen Subchapter: Pre-emption and Neighbouring Rights المسألة الأولى: معناها وأدلة مشروعيتها Definition and Evidence of Its Permissibility DEFINITION LINGUISTICALLY لغة: مأخوذةٌ إما من الشفْع، وإما من الزيادة، وإما من الشفاعة. Shuf’ah is derived either from "pairing," "increase, " or "intercession". 1. الشفْع - (pair) because the pre-emptor (شفيع) "joins" the property to their own, which was previously separate. 2. الزيادة - (increase) because the pre-emptor increases their ownership by acquiring the pre-empted property. 3. الشفاعة - (intercession) referring to a practice in pre-Islamic Arabia where a neighbour or partner would intercede to have the first right to buy the property being sold. LEGISLATIVELY الشُّفْعَةُ هي استحقاق الشريك انتزاع حصة شريكه ممن انتقل إليه بعوض مالي. Legislatively: Pre-emption (shuf‘ah) refers to the right of a co-owner to claim the transfer of their partner’s share from the buyer in exchange for monetary compensation. Some scholars define it as: هي حق تملك قهري يثبت للشريك القديم على الشريك الحادث بسبب الشركة لدفع الضرر. a compulsory right of ownership granted to an existing partner over a new co-owner due to the shared ownership, in order to prevent potential harm. EXAMPLE: Two people (Person A & Person B) purchase land for £100,000, with each owning half of it. Later, Person B sells his share to a third party (person C) for fifty thousand riyals. As a result, Person C becomes a partner to Person A, who may not be pleased with this new partnership, as it could cause him harm. To prevent this harm, Islam has given Person A the right of Shuf’ah and reclaim his partner's share—from Person C, at the same price Person B sold it to Person C. Person A gives Person C £50,000. As a result, the entire land becomes his and Person C's purchase is nullified. ---- RULING It is permissible according to the Sunnah and ijmaa' The primary evidence for the legitimacy of pre-emption is the hadith of Jabir (may Allah be pleased with him), who reported: ((قضى رسول الله ﷺ بالشفعة في كل ما لم يقسم، فإذا وقعت الحدود وصرفت الطرق فلا شفعة)) "The Messenger of Allāh ﷺ ruled in favor of pre-emption in all undivided properties. However, once boundaries have been established and pathways designated, there is no right to pre-emption." [Reported by Al-Bukhari, 2257, and Muslim, 1229] In another narration: ((قضى رسول الله بالشفعة في كل شركة لم تقسم ربعة أو حائط ، لا يحل له أن يبيع حتى يُؤذن شريكه ، فإن شاء ترك، فإذا باع ولم يؤذنه ، فهو أحق به)) "The Messenger of Allāh ﷺ ruled in favor of pre-emption in every undivided partnership, whether in a house or land. A partner is not allowed to sell until they inform their co-owner, who may either accept or decline. If they sell without informing their partner, the latter has the right to claim it." [Reported by Muslim, 1608] Furthermore, Jabir (may Allah be pleased with him) also reported: ((جار الدار أحق بالدار)) "A neighbour has more right to the house." [Reported by Al-Tirmidhi, 1368, and Abu Dawood, 3517; authenticated by Al-Albani, Irwa' Al-Ghalil, 1539] Scholars have unanimously agreed on the establishment of the right of pre-emption for a partner in undivided properties such as land, houses, or walls. This confirms the legitimacy of pre-emption based on both the Sunnah and scholarly consensus. ------- PILLARS The right of Shuf’ah consists of four essential elements: 1. The Pre-emptor (الشفيع): The party entitled to exercise the right of pre-emption (the aggrieved partner). 2. The Pre-empted-against Party (المشفوع عليه): The individual from whom the pre-empted right is taken (the third party who purchased from the unjust partner).